CDT Comments to the UK Department of Culture, Media, and Sport’s Consultation on Online Harms

The Center for Democracy & Technology (CDT) respectfully submits the following comments to the Department of Culture, Media, and Sport’s consultation on Online Harms. We have previously engaged in consultations in the United Kingdom concerning the Investigatory Powers bill and participated as intervenors in the case of Big Brother Watch vs. the United Kingdom before the European Court of Human Rights.

We provide responses to the specific consultation questions. As a threshold matter, however, we emphasize that the “duty of care” concept advanced in the white paper, and in particular the contemplation of legal duties for intermediaries to police speech that is “legal but harmful”, pose significant risks to individuals’ fundamental rights to freedom of expression and access to information.

Article 10 of the European Convention on Human Rights requires that limitations on freedom of expression be prescribed by law, which “means that the law must be accessible, clear and sufficiently precise to enable individuals to regulate their behaviour.” Limitations or restrictions on expression that are aimed at intermediaries nevertheless implicate the fundamental rights of individuals to speak and to access information. The white paper proposes an extremely broad concept of “online harms” and describes a regulatory approach in which a regulator, not Parliament, articulates standards for restricting information that intermediaries must follow. Intermediaries would face a variety of proposed penalties (as determined by the regulator, not a judge) for failing to meet these standards, which would create significant incentives for intermediaries to restrict content more broadly on their services, out of an abundance of caution. The lawful expression and access to information of individuals around the world would be the collateral damage of such a regulatory approach.

We welcome the white paper’s proposal that a regulator would “have an obligation to protect users’ rights online, particularly rights to privacy and freedom of expression. It will ensure that the new regulatory requirements do not lead to a disproportionately risk-averse response from companies that unduly limits freedom of expression, including by limiting participation in public debate.” We respectfully submit, however, that the government will need to narrow significantly the scope of such regulator’s activity and to ensure that any limitations on freedom of expression meet the standards of legality, necessity, and proportionality, in order to meet these goals.